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Syed Khurshed Ali Vs. Ghulam Mustafa - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1935All873; 158Ind.Cas.908
AppellantSyed Khurshed Ali
RespondentGhulam Mustafa
Cases Referred and Abdul Rahman v. Banke Behari Lal
Excerpt:
.....a decree, which was upheld in the lower appellate court and the high court on 28th july 1931. the substance of the decree was that the opposite party would be entitled to remove the materials of the house within three months from the date of the decree, and if he failed to do so, the plaintiff was to be entitled either to remove the materials with the help of the court or to obtain possession of the land with the materials. he decided that possession should not be delivered to the judgment-debt or, but be directed that the house should be demolished by the amin under the orders of the court at the expense of the judgment-debtor, and he also remarked that the period taken by the court in deciding the objection, which the decree-holder bad made to this application, that is to say, the..........or for the purpose of removing the materials. the court did actually refuse the judgment-debtor's application on the ground that the judgment-debtor was not entitled to obtain possession of the land which had already passed to the decree-holder. the court therefore passed an order, which was not merely an order extending time, but which directed a course to be pursued which had not been contemplated in the decree, namely, that the materials should be removed by the court at the expense of the judgment-debtor. it will be seen that, this was not an order passed under section 148, civil p.c. the decree had fixed, a period within which the judgment-debtor was to be allowed to remove the materials, and the order does not extend the time given to the judgment-debtor for removing the.....
Judgment:
ORDER

Kendall, J.

1. This application has arisen from a somewhat complicated set of circumstances. The present applicant filed a suit for possession of land by the demolition of a house and obtained a decree, which was upheld in the lower appellate Court and the High Court on 28th July 1931. The substance of the decree was that the opposite party would be entitled to remove the materials of the house within three months from the date of the decree, and if he failed to do so, the plaintiff was to be entitled either to remove the materials with the help of the Court or to obtain possession of the land with the materials. The opposite party was permitted to file an appeal under the Letters Patent which was dismissed on 4th August 1933, but omitted to pray for an extension of the time allowed to him by the decree of 28th March 1931, for the removal of the materials. Later on he made an application in review for extension of time, explaining that the omission had been by oversight and on 16th August 1934, the Letters Patent Bench granted three months extension of time with effect from the date of this order of 16th August 1934. In other words, the Letters Patent Bench modified its original order and allowed the opposite party to remove the materials of the house within three months of 16th August 1934. In the meanwhile however the decree-holder, the present applicant, had obtained possession of the land and the building. On 3rd September 1934, the opposite party made an application to the Munsif. It was worded as one for possession of the land by demolition of the building, and the Munsif apparently interpreted it as being an application for possession. He decided that possession should not be delivered to the judgment-debt or, but be directed that the house should be demolished by the amin under the orders of the Court at the expense of the judgment-debtor, and he also remarked that the period taken by the Court in deciding the objection, which the decree-holder bad made to this application, that is to say, the period from 3rd September 1934 to 22nd October 1934, should be excluded from the three months allowed to the judgment-debtor for the removal of the materials.

2. It is that order which has caused the difficulty. According to the applicant, the Munsif's order is without jurisdiction because be has varied the terms of the decree of the Letters Patent Bench by allowing an extension of time. The authority of the following cases has been quoted for holding that Section 148 Civil P.C., gives the Court no power to vary the terms of a decree : Suranjan Singh v. Ram Babal Lal (1913) 35 All 582, Sajjadi Begam v. Dilwar Husain 1918 All 98, Kandhaiya Singh v. Mt. Kundan 1920 All 173 and Abdul Rahman v. Banke Behari Lal 1934 Oudh 17. It is not however necessary for me to determine this question because it appears to me that the preliminary objection taken on behalf of the opposite party is hound to succeed.

3. The order passed by the Munsif is not an order merely extending time to the judgment-debt or for the purpose of removing the materials. The Court did actually refuse the judgment-debtor's application on the ground that the judgment-debtor was not entitled to obtain possession of the land which had already passed to the decree-holder. The Court therefore passed an order, which was not merely an order extending time, but which directed a course to be pursued which had not been contemplated in the decree, namely, that the materials should be removed by the Court at the expense of the judgment-debtor. It will be seen that, this was not an order passed under Section 148, Civil P.C. The decree had fixed, a period within which the judgment-debtor was to be allowed to remove the materials, and the order does not extend the time given to the judgment-debtor for removing the materials. It must be held that the order is one I passed under Section 144, Civil P.C. As such it may have been passed without jurisdiction, but the point is that as it is an order of this description, it I amounts to a decree within the meaning of Section 2, Civil P.C., and as a decree it is subject to an appeal. The High Court under Section 115, Civil P.C., has no jurisdiction to interfere in revision with an order which is subject to appeal, and for this reason the preliminary objection is accepted and the application is dismissed with costs.


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